Trump has been implicated in several federal crimes, but here’s why experts say he hasn’t faced legal consequences

Federal prosecutors implicated President Donald Trump in
felonies for the first time in December, stating Trump directed
illegal payments to two women who said they had affairs with him
in an effort to protect his presidential campaign.

According to legal experts, perhaps the only reason Trump has
not been charged with a crime is the fact he is president.

Trump has shifted from denying any knowledge of the
payments Cohen made to characterizing them as a "private
transaction," rejecting the notion he did anything
illegal.

Trump has also rejected other accusations leveled against
him, including obstruction of justice, and vehemently denies any
collusion with Russia.

Since the special counsel Robert Mueller began investigating
Russian election interference and the accusations that the Trump
campaign colluded with the Kremlin, President Donald Trump has
vehemently rejected the notion he did anything remotely illegal
in relation to the 2016 election.

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But federal prosecutors implicated Trump in felonies for the
first time in December, stating the president directed illegal
payments to two women who said they had affairs with him in an
effort to protect his presidential campaign.

Cohen had previously implicated Trump in the illegal payments,
which represent campaign-finance violations because they were
intended to influence the election, when he pleaded guilty to
eight criminal charges in August. But the mid-December filing
took things a big step forward, given federal prosecutors
endorsed Cohen's allegations against Trump.

"With respect to both payments, Cohen acted with the intent to
influence the 2016 presidential election," the filing stated.
"Cohen coordinated his actions with one or more members of the
campaign, including through meetings and phone calls, about the
fact, nature, and timing of the payments ... And as Cohen himself
has now admitted, with respect to both payments, he acted in
coordination with and at the direction of Individual-1."

The memo added, "As a result of Cohen's actions, neither woman
spoke to the press prior to the election."

"Individual-1" is Trump, and the memo puts him in an
uncomfortable position as federal prosecutors have connected him
to serious crimes. But there is a difference between being
implicated in crimes and being formally accused of or charged
with committing a crime.

caption

The US Constitution does not say a sitting president cannot be indicted.

source

Mark Wilson/Getty

According to legal experts, perhaps the only reason Trump has not
been charged with a crime is the fact he is president. The
US Constitution does not say a sitting president cannot be
indicted, but it would go against Justice Department policy.

Bradley P. Moss, a Washington, DC-based lawyer specializing
in national security, told INSIDER that "quite
possibly the only reason the president has not been indicted (or
at least been issued a target letter) by the federal prosecutors
is because he is the president and the standing [Department of
Justice] guidance is that a sitting president can't be
indicted."

This puts the Justice Department in a "difficult position"
given the "statute of limitations to indict [Trump] will have
lapsed if he nonetheless wins reelection in 2020 and serves out a
full two-term presidency," Moss explained.

Accordingly, if the president is ultimately reelected, and
the prosecutors believe "a credible prosecution would otherwise
be brought" against him, Moss said, the likely result is that
they'll submit a report to the attorney general "who will then
have the option to forward that report to Congress for possible
impeachment proceedings."

Moss added there is also the option of a sealed indictment,
but said this would be an "illogical move" given many details
surrounding the case are already public.

If the Justice Department believes it has a credible case
against the president but can't move forward as a consequence of
"institutional policy," Moss said, then it should refer the
matter to Congress to "evaluate whether the circumstances warrant
impeachment proceedings."

"That is how the system was designed to address the very
real possibility of a president who has committed high crimes and
misdemeanors and to ensure that a president is not 'above the
law,'" Moss said. "It also makes it so that the serious matter of
potentially removing a president from office has an aura of
political legitimacy to it, in addition to legal
legitimacy."

Similarly, Asha Rangappa, a former FBI special agent and
Yale Law School lecturer, told INSIDER, "The short answer is that
right now it is [Department of Justice] policy not to indict a
sitting president."

Rangappa added, "That is not settled law, however, and so
it depends on whether they want to change or depart from that
policy in the current circumstances - particularly since, unlike
with previous special prosecutors/independent counsels, there is
no direct way for [Robert Mueller] to report his findings to
Congress or make them public."

There's also the possibility that Trump makes it to the
2020 election scot-free, but ultimately loses. If this occurs, he
would lose the de facto presidential immunity and be far more
susceptible to facing charges. His term of office would expire at
noon on January 20, 2021, in the event Trump loses on Election
Day in 2020.

As Jennifer Taub, a professor at Vermont Law School wrote
in
a recent op-ed for CNN, "Whether indicted as a direct
violator of the Federal Election Campaign Act, aiding and
abetting it, or conspiring to violate it, Trump could face a
prison sentence ... Even if not indicted now, Trump has a big
gamble ahead. He can hope he wins in 2020. But if he does not, a
criminal trial most likely awaits him on the other side."

Trump also has the option of resigning, allowing Vice
President Mike Pence to take his place, and hoping for a
presidential pardon for all federal crimes, Taub added. But even
in this scenario there is no guarantee things would work out in
Trump's favor.

Top Democrats in Congress have suggested that if the report
is true it means Trump suborned perjury and obstructed justice,
which are both serious crimes. But given the report remains
unconfirmed it's difficult to say if Trump will ever face legal
consequences in this regard.